Nicole Fenshaw was involved in a motor vehicle accident in 2018 when she was four years old. She was hit by a car driven by Simon Wong as she was crossing the road.

A negligence action was brought on Nicole's behalf to obtain compensation from Simon. In 2020 at trial, over defence objections, Nicole was allowed to give sworn testimony. The judge asked did she know why she was appearing in court. She said that she was there to get money from the person who hit her in the car. The judge responded, 'but you do know that you must tell the truth?' She answered, 'don't worry, I know what I should say'. The judge rejected the defendant's application to call a child psychologist to testify that Nicole was unable to provide a true version of her recollections, saying, 'this is something I am perfectly qualified to assess'.

In direct examination, Nicole testified that she was hit by a speeding car as she stepped out onto the pedestrian crossing outside her home. She said that she did not hear or see the car before it hit her. She said that she was going across the road to her friend's house. She said that she knew she should not have been out on the street by herself, but she was bored playing in the front yard.

In cross-examination, defence counsel said: 'Now, this happened two years ago when you were only four. It must be hard remembering what happened.' Nicole said that she was 'sure she had got it right'. Defence counsel asked 'do you remember what you were wearing that day? Do you remember what you had for breakfast that day?' Nicole said, 'you are confusing me'. Defence counsel asked, 'Did you talk to your mummy and your daddy about what you should say today?' Nicole said, 'yes, of course'. Defence counsel said, 'did you practise what you were going to say with them?' Nicole said 'I don't know what you mean'. Defence counsel said 'no further questions'.

In re-examination, over objection, Nicole said she spoke to the police about the accident at the time. Nicole's counsel called a police officer who attended the scene and took a statement from Nicole. The police officer read from his notebook, 'attended scene of accident. Child victim, Nicole Fenshaw, aged 3, said she got hit by speeding car on pedestrian crossing.'

In the defence case, the only witness was the defendant. Simon Wong testified that he was driving through the village at the speed limit, paying attention to other cars and pedestrians, when a child suddenly ran out on to the road chasing a ball. He put the brakes on immediately but could not avoid hitting the child. In cross-examination, over objection, Simon said that he was employed as a truck driver and admitted that he had a number of speeding tickets and that his employer would be concerned if he was found to have driven negligently. In re-examination Simon said that the speeding tickets were incurred while driving his car on the open road, and not in built-up areas.

In closing submissions the plaintiff's counsel invited the judge to draw adverse inferences from the operation of Browne v Dunn.

Discuss the evidentiary issues (relating to witnesses) that arise in this scenario.